When Courts Stop Strikes Before They Start: Why Workers and the Public Lose

You might think that nothing is more fundamental to labor law than the right to get mad at your boss, huddle with your co-workers, and talk options to push back, including, just maybe, a strike. And as amply demonstrated at Wal-Mart, McDonald's and many other fast food restaurants over the past year or so, you'd basically be right. But last month, in Aircraft Service International v. Working Washington, the Ninth Circuit Court of Appeals held that in the air and rail industries, that scenario lets a company run into federal court to stop the strike before it even starts. This nullification of the strike right -- the core building block of effective workplace advocacy for thousands of unrepresented, often low wage contract workers at airports -- deserves a lot more attention than it's been getting.

The surprising turn of events began in September 2012, when a group of airline fuelers working for Aircraft Service International Group (ASIG) at Seattle's SeaTac Airport protested the indefinite suspension of one of their colleagues, Alex Popescu. Alex had been a workplace leader, frequently voicing safety concerns about ASIG's equipment, and he had testified before the Seattle Port Commission about working conditions two days before he was disciplined, allegedly for yelling at a supervisor.

Alex's co-workers responded as one might expect, contacting ASIG's H.R. Department to support Alex's side of the story. When that didn't work, and when the company refused to give Alex a timeline for its investigation of his actions, the fuelers met with a local community group called Working Washington to think about next steps. After two weeks without progress, the fuelers, Working Washington and other supporters held a press conference to announce a strike, though no actual date for it had been set.

At that point, ASIG did something one might not expect: It sued its own workers. In no time the company had a federal court issue a temporary restraining order barring a future strike. When the order was later made permanent, the case was teed up for the Ninth Circuit.

Beyond the intuitively unsettling reality that, at base, the Ninth Circuit's decision strips an employee's right to not work, it was wrong on the law in ways that profoundly affect a growing class of low wage workers and impact the traveling public.

Indeed, the decision is so surprising because there is no mistaking that Alex and his colleagues had the law on their side. The Ninth Circuit found that the federal law governing labor rights in the airline and rail industries, the Railway Labor Act (not to be confused with the National Labor Relations Act, which covers private sector workers in other industries), prohibited even the threat of a strike, because it required the workers to take part in the law's formal dispute resolution process first.

Those procedures, however, have always applied to already unionized workers, or at least to workers actively seeking to have a bargaining representative appointed. No court had ever stated that non-union workers agitating for workplace safety or fairness must sublimate collective protest into the Act's bureaucracy. As Alex and Working Washington rightly argued on appeal, nothing in the RLA's language, history, or as it had previously been interpreted suggested that its dispute resolution provision is some kind of "catch-all" intended to shuttle every tarmac or hangar disagreement off to a mediator's office -- especially not when the issue at hand has nothing to do with unionization. Moreover, a proper reading of the RLA meant that the court itself lacked jurisdiction to issue the order because of a statute called the Norris-LaGuardia Act, which was explicitly enacted to stop judges from cutting workers' strike plans off at the knees.

Ultimately, unless the full Ninth Circuit convenes to overturn the majority's reading of the RLA (and the fuelers recently requested just such an "en banc" review, so let's hope it does) and unless the other federal circuits reject the majority's reasoning (and let's hope they do), the practical consequences of the decision are two-fold. One, those who clean, fuel and service our nation's skies -- increasingly contracted-out and poorly paid employees -- will quite literally have no effective way to agitate for improvements in their workplaces. As the opinion's dissenting judge (a George W. Bush appointee) noted, Alex and his colleagues are now left "with only two options: They must either acquiesce to what they view as unsafe working conditions and vindictive management behavior, or they must quit." The dissent also pointed out that if the fuelers wanted to actually form a union (and given the facts of this case, that's a big "if"), a procedural quirk of the RLA would make it practically, though not legally, impossible.

Another consequence is that anyone who flies might now wonder if staffing, safety or other issues connected to air travel are being swiftly reported and addressed by companies like ASIG. The public should want people like Alex to feel empowered to confront management with problems about say, the transmission on an enormous gasoline truck, without fear of retaliation. A big way that workers can gain that kind of security is when they know that their colleagues will stand up for them if they speak out and retaliation in fact occurs. At one point, Alex Popescu recognized that his fellow fuelers would do just that, in no small part because the group could rely on the law to protect them if they decided to strike. Unfortunately, because of the Ninth Circuit's decision, future workers in Alex's situation will not be so sure.

Michael M. Oswalt is an Assistant Professor at Northern Illinois Law School. He previously worked for the Service Employees International Union, a supporter of Working Washington.